Amendments to Plan of Arrangement (a) The Company and the Purchaser may amend, modify and/or supplement this Plan of Arrangement at any time and from time to time prior to the Effective Time, provided that each such amendment, modification and/or supplement must be (i) set out in writing, (ii) approved by the Purchaser and the Company (subject to the Arrangement Agreement), each acting reasonably, (iii) filed with the Court and, if made following the Company Meeting, approved by the Court, and (iv) communicated to or approved by the Company Shareholders if and as required by the Court.
(b) Any amendment, modification or supplement to this Plan of Arrangement may be proposed by the Company or the Purchaser at any time prior to the Company Meeting and the Purchaser Meeting (provided that the Purchaser or the Company, subject to the Arrangement Agreement, have each consented in writing thereto) with or without any other prior notice or communication, and if so proposed and accepted by the Persons voting at the Company Meeting and the Purchaser Meeting, respectively (other than as may be required under the Interim Order), shall become part of this Plan of Arrangement for all purposes.
(c) Any amendment, modification or supplement to this Plan of Arrangement that is approved or directed by the Court following the Company Meeting shall be effective only if (i) it is consented to in writing by each of the Company and the Purchaser (in each case, acting reasonably), and (ii) if required by the Court, it is consented to by some or all of the Company Shareholders voting in the manner directed by the Court.
(d) Any amendment, modification or supplement to this Plan of Arrangement may be made following the Effective Date and prior to the Acquisition Date by the Purchaser and the Company, provided that it concerns a matter which, in the reasonable opinion of the Purchaser and the Company, is of an administrative nature required to better give effect to the implementation of this Plan of Arrangement and is not adverse to the economic interest of any Company Shareholder, High Street Holder or USCo2 Class B Shareholder.
Amendments to Merger Agreement The Merger Agreement is hereby amended as follows:
2.1 The first sentence of Section 1.1(c) of the Merger Agreement shall be amended in its entirety to read as follows:
Plan of Arrangement Subject to the terms and conditions of this Agreement and the Plan of Arrangement, substantially in the form attached hereto as Exhibit D (the "Plan of Arrangement"), at the Effective Time (as defined herein) (i) each outstanding common share or special share in the capital of Newcourt (each, a "Newcourt Common Share") for which the holder thereof shall have made a valid election shall be transferred by the holder thereof, without any act or formality on the part of such holder, to Newco in exchange for 0.92 of a fully paid and non-assessable share of Class A Common Stock, par value $0.01 per share (the "CIT Common Stock"), of CIT, (ii) each Newcourt Common Share for which the holder thereof shall have made a valid election shall be exchanged by the holder thereof, without any act or formality on the part of such holder, for 0.92 of a fully paid and non-assessable share in the class of non-voting exchangeable shares in the capital of Newcourt (each, an "Exchangeable Share"), (iii) each Newcourt Common Share for which no valid election shall have been made (other than (x) Newcourt Common Shares held by a Dissenting Shareholder who is ultimately entitled to be paid the fair value of the Newcourt Common Shares held by such shareholder and (y) Newcourt Common Shares held by CIT or any Subsidiary or affiliate thereof) shall be transferred by the holder thereof, without any act or formality on the part of such holder, to Newco in exchange for 0.92 of a fully paid and non-assessable share of CIT Common Stock, (iv) each Newcourt Option shall be exchanged for a Replacement Option to purchase shares of CIT Common Stock as contemplated by Section 1.6 and (v) the other terms set forth in the Plan of Arrangement shall be implemented. Such ratio of Newcourt Common Shares to CIT Common Stock or Exchangeable Shares, as the case may be, is hereinafter referred to as the "Exchange Ratio." The Plan of Arrangement provides for the terms of the Arrangement and the mode of carrying the Arrangement into effect. Such terms and conditions are incorporated by reference herein and made a part hereof.
Amendments to the Merger Agreement The Merger Agreement is hereby amended as follows:
Amendments to Agreement This Agreement, or any term thereof, may be changed or waived only by written amendment signed by the party against whom enforcement of such change or waiver is sought. For special cases, the parties hereto may amend such procedures set forth herein as may be appropriate or practical under the circumstances, and Ultimus may conclusively assume that any special procedure which has been approved by the Trust does not conflict with or violate any requirements of its Declaration of Trust or then current prospectuses, or any rule, regulation or requirement of any regulatory body.
Amendments to Financing Agreement Subject to the satisfaction of the conditions of this Amendment, the Financing Agreement is hereby amended as follows:
Amendments to Security Documents Except to the extent otherwise expressly set forth in the Guarantee and Security Agreement or the other Loan Documents, no Security Document nor any provision thereof may be waived, amended or modified, nor may the Liens granted under the Guarantee and Security Agreement be spread to secure any additional obligations (excluding (x) any increase in the Loans and Letters of Credit hereunder pursuant to a Commitment Increase under Section 2.08(e), (y) any increase in any Other Secured Indebtedness or Shorter Term Secured Indebtedness permitted hereunder and (z) the spreading of such Liens to any Designated Indebtedness or Hedging Agreement Obligations (as defined in the Guarantee and Security Agreement) as provided for in the Guarantee and Security Agreement), except pursuant to an agreement or agreements in writing entered into by the Borrower, and by the Collateral Agent with the consent of the Required Lenders; provided that, (i) except as otherwise expressly permitted by the Loan Documents, without the written consent of each Lender and each Issuing Bank, no such agreement shall release all or substantially all of the Obligors from their respective obligations under the Security Documents and (ii) except as otherwise expressly permitted by the Loan Documents, without the written consent of each Lender and each Issuing Bank, no such agreement shall release all or substantially all of the collateral security or otherwise terminate all or substantially all of the Liens under the Security Documents, alter the relative priorities of the obligations entitled to the Liens created under the Security Documents (except in connection with securing additional obligations equally and ratably with the Loans and other obligations hereunder) with respect to all or substantially all of the collateral security provided thereby, except that no such consent shall be required, and the Administrative Agent is hereby authorized (and so agrees with the Borrower) to direct the Collateral Agent under the Guarantee and Security Agreement to, and in addition to the rights of such parties under the Guarantee and Security Agreement, the Administrative Agent and the Collateral Agent under the Guarantee and Security Agreement may, (1) release any Lien covering property (and to release any such guarantor) that is the subject of either a disposition of property not prohibited hereunder (including, without limitation, any property subject to a participation or repurchase transaction) or a disposition to which the Required Lenders or the required number or percentage of Lenders have consented (and such Lien shall be released automatically (A) to the extent provided in Section 10.03 of the Guarantee and Security Agreement and (B) to the extent permitted hereunder in connection with any property becoming subject to a participation or repurchase transaction), and (2) release from the Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) that is designated as a “Designated Subsidiary” or becomes an Excluded Asset or an Immaterial Subsidiary in accordance with this Agreement or is otherwise no longer required to be a “Subsidiary Guarantor” (including, without limitation, because it ceases to be consolidated on the Borrower’s financial statements), so long as immediately after giving effect to any such release under this clause (2) and any Concurrent Transactions, (A) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers a certificate of a Financial Officer to such effect to the Administrative Agent, (B) either (I) the amount of any excess availability under the Borrowing Base immediately prior to such release is not diminished as a result of such release or (II) the Adjusted Gross Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount and (C) no Event of Default has occurred and is continuing.
Amendments to Agreements The Company shall not amend, modify or otherwise change the Warrant Agreement, Trust Agreement, Registration Rights Agreement, Purchase Agreements, the Services Agreement, or any Insider Letter without the prior written consent of the Representative which will not be unreasonably withheld. Furthermore, the Trust Agreement shall provide that the trustee is required to obtain a joint written instruction signed by both the Company and the Representative with respect to the transfer of the funds held in the Trust Account from the Trust Account, prior to commencing any liquidation of the assets of the Trust Account in connection with the consummation of any Business Combination, and such provision of the Trust Agreement shall not be permitted to be amended without the prior written consent of the Representative.
Amendments to Employment Agreement Effective as of the date hereof, the Employment Agreement shall be amended as provided in this Section 1.
Amendments to Rights Agreement (a) The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is amended by inserting the following as a new paragraph at the end of such definition: “Notwithstanding anything in this Section 1(a) that might otherwise be deemed to the contrary, none of XXX Xxxxxxxxxxx, a Massachusetts corporation (“Parent”), Emerge Merger Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), or any of their respective Affiliates or Associates, either individually, collectively or in any combinations, shall be deemed to be or become an “Acquiring Person” solely by virtue of, or as a result of (i) the execution and delivery of the Agreement and Plan of Merger, dated as of April 8, 2008, by and among the Company, Parent and Merger Sub (including any amendment or supplement thereto, the “Merger Agreement”) or the Tender and Voting Agreements (collectively with the Merger Agreement, the “Transaction Documents”), or (ii) the announcement, commencement, performance or consummation of the transactions contemplated by the Transaction Documents, including, without limitation, the Offer or the Merger (each as defined in the Merger Agreement) (the foregoing actions being referred to as the “Permitted Events”).”
(b) The definition of “Stock Acquisition Date” in Section 1(bb) of the Rights Agreement is amended to add the following sentence at the end thereof: “Notwithstanding anything in this Agreement that might otherwise be deemed to the contrary, a Stock Acquisition Date shall not be deemed to have occurred solely by virtue of, or as a result of, any Permitted Event, the public announcement thereof or the actual knowledge of an executive officer of the Company that a Permitted Event has occurred.”
(c) Section 3(a) of the Rights Agreement is amended to add the following sentence at the end thereof: “Notwithstanding anything in this Agreement that might otherwise be deemed to the contrary, a Distribution Date shall not be deemed to have occurred solely by virtue of, or as the result of, any Permitted Event.”
